Ontario Divorce & Family Law Blog, by Russell Alexander, Family Lawyers

Posts tagged ‘Hincks v. Gallardo’

Last year I wrote about an interesting Ontario family law case called Hincks v. Gallardo, [link to: ]. In a nutshell, the case hinged on the question of whether, for the purpose of divorce, a same-sex union in another country can amount to a “marriage” under Canadian law.

The couple, who were two men named Wayne and Gerardo, had exchanged rings and gone through a “civil partnership” ceremony in the U.K., under laws that recognized same-sex unions in that country. They moved to Ontario and later decided to divorce. Wayne asked for equalization and spousal support from Gerardo under the province’s Family Law Act (the FLA) and the federal Divorce Act (DA).

As a prerequisite to obtaining that divorce-related relief, Wayne had to prove they were actually married first. Gerardo claimed that the union between them was not a “marriage” under Canadian law.

The judge hearing the original motion disagreed and – in its judgment rendered recently – the Ontario Court of Appeal confirmed that decision. Emphasizing that the wording of the FLA and DA were to be interpreted in their entire context, and in their grammatical and ordinary sense in harmony with the scheme and purpose of the legislation, the Court of Appeal concluded:

The interpretation by the motion judge of the terms “spouses” and “marriage” is entirely consistent with the modern approach [to statutory interpretation] mandated by the Supreme Court of Canada [in a prior decision]. Her interpretation achieves one of the fundamental purposes of the DA and the FLA: it provides the parties with an equitable and certain process for resolving their economic issues arising out of the dissolution of their relationship. In contrast, the interpretation urged upon us by the appellant would result in the parties being effectively treated as legal strangers under the legislation and would force them to assert their economic claims through more limited and less predictable means, such as trust claims.

As a result, under the FLA two people who are in a relationship that is both formally and functionally equivalent to marriage may be considered spouses under that Act; likewise, they have the same standing for the purposes of the divorce legislation. The appeal was accordingly dismissed.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

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Granting a Canadian Divorce to a Foreign Same-Sex Couple – Are They Even “Married”?

An interesting Ontario case decided last week untangles the question of whether – for the purposes of divorce – a same-sex union in another country can constitute a “marriage” in Canada.

The couple, two men named Wayne and Gerardo, met in 2009 and went through what is known as a “civil partnership” ceremony in the UK, in keeping with legislation devoted specifically to recognizing same-sex relationships in that country. (The term “marriage” in UK law is still specifically reserved for opposite-sex relationships).

They complied with all the UK procedural requirements, and exchanged rings.

When they decided to move to Canada (where Wayne was originally from), Gerardo obtained a UK national identity card which identified him as “spouse/partner”. Upon inquiring at Toronto City hall about the prospect of having a civil marriage ceremony here, they were told that as far as the Registrar was concerned it was unnecessary, since they were already in a UK civil partnership.

They separated in early 2011, and Wayne filed in Ontario for a divorce. He claimed equalization of net family property, and spousal support pursuant to the province’s Family Law Act.

However, Gerardo countered by claiming the parties were not actually married – i.e. that “civil partnerships” do not constitute “marriages” in the UK, much less in Canada. As such, he asserted that an Ontario court has no authority to grant a divorce or to grant equalization under the Ontario Family Law Act unless the parties are married spouses first.

Accordingly, and as a prerequisite to a divorce, Wayne applied to the court for a declaration that the union between him and Gerardo was a “marriage” for the purposes of Canadian family law.

The court observed that in Canada, “marriage” is defined by the Civil Marriage Act as “the lawful union of two persons to the exclusion of all others.” Wayne and Gerardo’s civil partnership met that criterion. Moreover, Canadian law was entitled to treat a foreign civil partnership as a “marriage” if it saw fit, and there was no need to force Wayne and Gerardo to have their civil partnership dissolved using the procedures established in the UK.

To resolve the question the court had to take into account the legislative and policy framework for marriage and civil unions in both Canada and elsewhere. In particular, the court recognized that the law is possessed with the flexibility necessary to meet the changing realities of Canadian society.

With that context in mind, the court declared that Wayne and Gerardo’s civil partnership could constitute of “marriage” under the Canada Civil Marriage Act. To hold otherwise, it said, would be to perpetuate discrimination and to “run contrary to the express values of Canadian society, expressed in both the case law, and the statute itself.”

For the full text of the decision, see:

Hincks v. Gallardo, 2013 CanLII 248 (ONSC)

http://canlii.ca/t/fvkpd

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

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FamilyLLB is written by Russell Alexander, a divorce and family law lawyer based in Ontario, Canada. For nearly twenty years, Russell's firm has helped clients who are going through a separation or divorce. You can find more of Russell's online commentary via Twitter, Google+, LinkedIn, or on the firm's Facebook page.